Primarily for hungry litigators, but of help to the practitioner

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SanerMedical Malpractice in South Africa will be of great assistance to the ‘reasonable doctor’, writes reviewer Dr Liz Meyer, a medico-legal adviser for Ethiqal. However, it is clearly written primarily for litigators in the lucrative field of medical negligence and, in this, ignores some key developments.

Meyer writes:

“The above guide was published early 2018 and is available for sale from the LexisNexis South Africa online store. It is a comprehensive guide dealing with the practical aspects of medical negligence litigation from a substantive, procedural and ethical point of view.

“The guide is factually extremely comprehensive. It takes the form of a loose-leaf binder to facilitate annual updating and consists of 24 chapters. The first nine will be of special interest to medical practitioners but are also invaluable to assist and educate rookie attorneys hoping to start a lucrative professional practice specialising in medical malpractice litigation.

“The second chapter discusses ‘The reasonable doctor’. The translation from the theoretical yardstick of reasonableness into the practical standard will be of great assistance to the medical practitioner: ie what are the basic aspects of a medical practitioner’s approach, which if followed, would, in general, be regarded as reasonable. The author explains in some detail how failure to adhere to these practical standards will be of importance when assessing fault.

“The explanation of the legal concepts of ‘unlawfulness’ and ‘fault’ should assist non-lawyers in clarifying their understanding of the difficult concept of ‘duty of care’. Of value to members of the medical profession with little knowledge of the law are highlighted ‘Doctors’ Takes’ throughout the guide. These provide the medical reader with useful insights forewarning them of areas of practice where they can avoid mistakes which might lead to legal liability or disciplinary steps. Medical practitioners will also benefit from careful study of the chapters pertaining to consent, patient records, confidentiality, disclosure and especially the structure of the medical profession and disciplinary procedures.

“However, it is very clear that the guide is written by a plaintiff Counsel. The work is primarily geared for litigators seeking entry into the potentially lucrative area of litigation or looking to further their knowledge or trial skills in that field. It appears that it has been written to serve as a primary source of reference on the law of, and practicalities involved in medical negligence litigation. Chapters 10 to 24 range in scope from the substantive law to the importance of correct case selection, to preparation for and aspects of the trial itself. There is a strong medico-legal slant to help attorneys and counsel in this specialised field of litigation.

“The chapter on medical experts is of interest to the medical practitioner – it explains the importance of an expert in assisting the court with an unbiased, impartial and objective opinion. The ‘Dos and don’ts for expert witnesses’ is extremely relevant for potential and existing medical experts. It is, unfortunately, a sad fact that there are experts in South Africa who, acting on contingency, forget that they are not retained to give a favourable opinion on behalf of the party who hired them, but are ethically bound to arrive at an objective, impartial opinion to assist the court. This chapter serves to remind them of possible adverse consequences in such an approach.

“The appendices form a large section of the guide. These are comprehensive and include a ‘Glossary of medical terms’ – of value, of course, to potential litigators! The ‘Legislative extracts’ are very helpful and close at hand for easy reference. The ‘HPCSA Guidelines for Good Practice in the Healthcare Professions’ is a useful appendix and once again, close at hand. The author emphasises that ‘The draft of a general patient consent’ is a draft and should not be used as it stands – an emphasis which many medical practitioners may fail to notice! For the aspiring litigator there is a ‘Checklist for the plaintiff’s consultation’ and most important of all – appendix 10 – a ‘Contingency fee agreement’. Tables of the relevant cases and statutes and a comprehensive index conclude the guide.

“Three aspects are sorely lacking in this guide. Firstly, a discussion of the intention and purpose of the Contingency Act 66 of 1997 which aimed to place litigation within the reach of an indigent population which could previously not afford to litigate. Unfortunately, practical application of the Act may have led to certain questionable practices, rather than achieving the primary purpose of placing litigation within the reach of the indigent. Matters that are litigated on a contingency basis are mainly the extremely lucrative ones, not necessarily the deserving ones.

“Secondly, no mention is made of alternative dispute resolution procedures, especially mediation. It appears that compulsory mediation or other alternative dispute resolution methods are set to play a role in the medical litigation scenario of the future and a discussion of them would have been of value.

“Thirdly, in a landmark judgment , the Constitutional Court recently left the door open for the development of the common law, so as to have future damages in personal injury claims paid periodically and by way of services. This case came in the wake of the exponential rise in medical negligence claims against state hospitals. If this development comes to fruition, the whole basis of medico-legal litigation may alter.”

Review by Dr Liz Meyer, medico-legal adviser for Ethiqal.

Medical Malpractice in South Africa
John Saner SC
Lexis Nexis
ISBN: 9780639001456

LexisNexis order

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